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Builders take row on new industry rules to Senate

By Peter Theuri | July 23rd 2020

The battle between developers and the government over new regulations for the construction industry is heating up. 

The developers under the umbrella of the Joint Building and Construction Council (JBCC) have intensified lobbying against the National Construction Authority (Defects Liability) Regulations, 2020 gazetted in April due to what they said was lack of consultation and unclear definition of terms in the regulations.

JBCC has now written to Kiambu Senator Kimani Wamatangi, who chairs the Senate Committee on Roads and Transportation, asking for the revocation of the regulations as “they are not in conformity with the Statutory Instruments Act of 2013”.

In the letter, the council says industry representatives appeared before the committee on June 29, 2020 to voice the construction industry’s reservations with the regulations.

Following the meeting, the committee tasked the Cabinet Secretary in the Ministry of Transport, Infrastructure, Housing, Urban Development and Public Works James Macharia to present evidence that adequate stakeholder consultations had taken place in drafting the regulations.

JBCC says in five meetings that took place on diverse dates between December 3, 2019 and March 10, 2020, the primary agenda was to discuss The Draft Building Regulations (Building Code) for Kenya and not the regulations.

“The National Construction Authority (Defects Liability) Regulations, 2020, which are now the subject matter, were never presented as a substantive agenda in any of the meetings,” says the lobby.

Not adhered to

The industry players now say the Statutory Instruments Act, 2013, was not adhered to in processing the regulations and that non-conformity should thus render them unenforceable.  

They further cite inadequate stakeholder consultation, lack of a regulatory Impact Statement and lack of provision of an Explanatory Memorandum by the ministry.

“To the best of our knowledge, the regulations were not tabled in Parliament. Indeed, the Clerk of the National Assembly, through their letter Ref: NA/DCS/CDL/CORR/2020/025 of June 17, 2020, informed us that the regulations were yet to be submitted to the National Assembly for scrutiny in accordance with Section II of the Statutory Instruments Act, 2013,” the letter states.

JBCC says the regulations are unnecessary as the industry can run on its own standard forms of contracts.

“It is our considered view that there is no need to have local regulations on the matter of defects and liability arising thereof, as these are technical and contractual issues that have been adequately addressed in the various standard forms of contract.”

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